STATEMENT OF COMMISSIONER
MICHAEL J. COPPS
RE: Communications Assistance for Law Enforcement.
I support the Commission's actions today. Our responsibilities under Section 107
of the Communications Assistance for Law Enforcement Act ("CALEA") are critical,
and I am pleased that the Commission was able to move from our September 18, 2001
Order to today's Order so rapidly. Our actions today will help law enforcement agencies
("LEAs") and the wireless industry make progress in better equipping LEAs to collect
call-identifying information.
While I support today's action, I am concerned about two aspects of the Order.
First, as the Order notes, we must "establish standards that 'meet the assistance capability
requirements of Section 103 by cost effective methods' and 'minimize the cost of such
compliance on residential ratepayers. '" The Remand Order states that the Third R&O
"made no attempt to compare the cost of implementing the punch list capabilities with the
cost of obtaining the same information through alternative means, nor did it explain how
it measured cost-effectiveness. Although it mentioned residential ratepayers, it never
explained what impact its Order would have on residential rates."
In today's Order, with an explanation of our reasoning, we conclude that the same
capabilities that we have identified in our previous Order and the same means of
implementing these capabilities are cost-effective and serve to minimize costs on
residential ratepayers.
I remain concerned, however, that CALEA-related costs for these government
mandates will be high for residential customers and wireless providers, especially for
rural providers. Carriers and consumers have only one recourse when faced with these
costs - they may petition the Commission under Section 109(b)(1) and demonstrate that
compliance with the new assistance capabilities is not "reasonably achievable." The
Commission must then consider "the effect on rates for basic residential telephone
service" as part of determining whether the capabilities are reasonably achievable for that
carrier.
My second issue of concern is privacy. CALEA requires any Commission rule to
"protect the privacy and security of communications not authorized to be intercepted."
The Court noted in the Remand Decision that in justifying its decision: "The Commission
spoke of law enforcement's need to obtain post-cut-through dialed digits and of the cost
of providing them, but it never explained, as CALEA requires, how its rule will 'protect
the privacy and security of communications not authorized to be intercepted.'" The
Court also stated that the Commission's rejection of alternatives to its post-cut-through
dialed digit decision was based not on technological infeasibility, but because the
alternatives "'would shift the cost burden from the originating carrier to the LEA,' 'could
be time-consuming,' and might burden law enforcement's ability 'to conduct electronic
surveillance effectively and efficiently.'" The Court stated that this was "an entirely
unsatisfactory response."
Congress insisted that we protect individual privacy in CALEA. The Court told
us that we must explain how our rule does this, and not accept a solution that fails to
protect privacy merely because of costs, time burdens, or difficulties LEAs might
encounter from a rule that is more privacy protective. This is an extremely difficult task
for the Commission. I would be more satisfied if we had a post-cut-through dialed digit
technology available to us that provides LEAs with call-identifying information while
protecting other information. Unfortunately, we do not, so we have chosen a technology
that ensures that LEAs will receive the information they need, and rely on the fact that a
court must decide whether a pen register warrant or a Title III warrant is the appropriate
legal authority when that information is mixed with non-call-identifying information.
Given our options at this time, I believe that this is the best choice available to us.
47 U.S.C. § 1006(b)(1) (emphasis added).
47 U.S.C. § 1006(b)(3).
United States Telecom. Assoc. v. FCC, 227 F.3d 450, 461 (DC Cir. 2000) (hereafter "Remand Decision").
Remand Decision at 462.
Id.
Id.
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